Building Safety Bill (Third sitting)

Ruth Cadbury Excerpts

Tuesday 14th September 2021 Public Bill Committees

[The Chair]

I think Graham Russell wants to come in.

Graham Russell: I was going to return to the very first part of Ms Cooper’s question, which was about the level of comfort we feel about the arrangements and the situation more generally. I do not think that “comfort” is a word that we have been using very much in either of our organisations about a situation in which, clearly, people have suffered enormously and the regulatory system has not protected people. That is why we are part of the mechanism that will deliver the Bill.

I think that it is incumbent on all of us to make significant change. We need a more robust regulatory system, better checks and a better testing environment, and we need to build the confidence that Peter has spoken about—confidence for residents, but also confidence for the industry that it is doing the right thing. We face a major challenge and the Bill is really important, but it is a framework.

In terms of the complexity of governance, obviously you have probed one particular part of that, but because this is a system that delivers safer outcomes, every part of that system must work. It is incumbent on us to make sure that it works, so we need to fit the different aspects together. From my point of view, that particularly includes local authorities and their ability to work closely on the ground with local suppliers, and the proof of that will be whether we can create and deliver a system and then give people confidence that that system is providing what has not been there in the past.

[Ruth Cadbury (Brentford and Isleworth) (Lab)]

Q Good morning. I have two slightly different questions. One goes back to the issue we have touched on already, which is the competency of the two roles—the accountable person and the building safety manager. Is the current framework for skills and competency accreditation in the sector adequate to deal with what will be quite significant competency challenges in these two roles? Should it be left to just the private sector, presumably with HSE involved, or do the Government have some role in this as well through their skills and training policies, direction and possible kickstart funding, to ensure there is a standard level of competency in these two quite different—but very responsible—roles?

Peter Baker: The Building Safety Regulator will have an important role of encouraging competence right across the built environment, not just to do with high-rise residential buildings, although clearly the focus of the regulatory activity of the BSR will be on that area. We have already started work setting up an interim competence committee, ready for the statutory competence committee when the Bill receives Royal Assent and is implemented. We as the BSR will have an important role in holding the ring on all of the competence development work that the industry has been leading since Grenfell, and making sure that that is all absolutely proportionate—that it is targeted at the right activity and at the right people. We will have quite a key role in making sure that that whole system of competency across the built environment is appropriate.

When it comes to support, I can only talk from my own experience of competencies in other high hazard regimes. In the past, organisations such as the Construction Industry Training Board and sector skills councils have also played a really crucial role, both through supporting the regulator and supporting their industry sectors in developing the detail and the systems for ensuring those levels of competencies, as well as providing some suitable checks and balances so that the competence frameworks are absolutely targeted at the right thing and people do not waste time, effort and money improving competence in areas that are not necessary. It is a dual role for everybody associated with the built environment to really lean into improving the competence right across the sector, and that is not just for high-rise residential buildings: the same applies in the workplace, in terms of workplace safety and making sure that people are competent in that area.

[Ruth Cadbury]

Q My other question goes back to this issue of complexity. Not all buildings are straightforward, and most of us in urban areas are very glad that many of these buildings are mixed use. In buildings with complex uses and complex ownership structures, it may be that the accountable person and the responsible person under fire safety legislation are different people, and the Government have addressed that issue through the duty to co-operate. Do you think that will suffice, or do you see problems arising over this?

Sarah Albon: At the end of the day, as you say, we just have to accept the complexity in this country—and, I suppose, most developed countries. You could wish that everything was simple; for us as a regulator, and no doubt everybody else trying to regulate in that space, it would be so much easier to do that if the world were different, but the reality is that mixed use of buildings is probably more common than not, particularly in urban areas, and particularly in these larger buildings. It is not uncommon at all to see a mixture of commercial premises—some of which may be relatively hazardous in themselves, such as petrol stations—with residential and office premises. We must just accept that complexity, accept the facts and ensure that those who are responsible in those buildings know that that changes the hazard present and the risk profile in the building. It becomes even more important that people who have responsibilities in that space take them seriously and ensure that what they are doing is bespoke to their circumstances.

One of the reasons HSE is so keen on the safety case regime, which, as Peter said, we have operated successfully in various other high-hazard environments, is that it drives people’s responsibility for taking an approach that is not about saying, “Have I complied with a whole list of things I should comply with?”, but rather saying, “Have I thought seriously about safety in my environment and the things I am responsible for? For sure, if there is a list of things I need to comply with, that might be part of it, but have I really thought about what could go wrong? What are the factors that could create some kind of additional hazard? How am I managing those things, and how do I ensure that, every day, I am properly and proactively thinking about and taking care of the people for whose lives and wellbeing I am responsible?”.

Safety and safety management is not something you do once and then stick it in a file until you are reviewed; it is something you should be thinking about every day, all the time, because the hazards present and the behaviour of people in an environment are constantly changing. You need to manage safety in that environment of constant change, where different behaviours or threats could constantly come in.

[Ruth Cadbury]

Q Finally, do you think the Bill is too tightly defined, both as regards use—it does not address other residential uses, such as student accommodation, accommodation used for health and social care and so on—and as regards height being a key definer of risk? Do you think risk should have been defined in a different way? We are actually talking about building safety.

Sarah Albon: Judith Hackitt’s report showed that height is a reasonable proxy for there being additional risks that people need to think about. At the end of the day, a regime such as this needs to start somewhere, and we as the regulator need a manageable and understandable pool of the riskiest buildings, where our work can start. Also, we have been talking about the importance of duty holders understanding what they are obliged to do, whether they are inside or outside a regime. For all those reasons, height is a well understood and clean starting point, but the Bill envisages that over time it may be appropriate for Parliament to return to the question of what is within scope of the higher risk regime, and to think about changing the boundaries if new evidence comes to light.

Peter Baker: Other legislative provisions will still apply to a number of those buildings, particularly workplaces such as hospitals and hotels. The Regulatory Reform (Fire Safety) Order 2005, which is about to be amended by the Fire Safety Act 2021, will still apply, so the fire risk issues will already be dealt with through that provision. The Government have also extended the new regulatory regime to hospitals and care homes during the design and construction phase, to ensure that the buildings that emerge from new build and large-scale refurbishment processes are built to standard and are safe.

Graham Russell: The provisions for the construction products apply across all buildings. For example, on cladding, in terms of safety, it would not matter which building it was going on to.

[The Chair]

We have six minutes to go, and I have two people I still want to get in. That is just to alert you.

--- Later in debate ---

[Ms Rimmer]

Q The draft Bill is largely a framework Bill, sometimes referred to as an enabling Bill, which provides for key parts of the new regulatory regime to be established by delegated legislation and building regulations. Do you find that acceptable? Is enough tied down to get the secondary legislation done quickly enough? There is no timescale—just what is “reasonable”. Is that acceptable, or do you have any concerns?

Councillor McCoy: We have some concerns. You are right that timeliness is key. It reflects the points that I made earlier about having time for industry to gear up. There needs to be a proper, informed transition period. That is London Councils’ view. There needs to be a transition period that allows time for the capacity to be built. It needs to be fully funded, and there needs to be prioritisation within it. Obviously, we are very keen to see the safety measures implemented as soon as possible, but there needs to be a prioritisation of high-risk buildings in the meantime. That goes back to a holistic assessment of those buildings. We think that we need a transition period of about five years, and we need that clarity as soon as possible.

Andrew Bulmer: I am relatively unexercised about whether it is done through enabling legislation or written in from day one; what I am exercised about is getting the regulations delivered quickly. We are trying to prepare for the future regime. Dame Judith Hackitt called for a culture change and we, as an organisation, are driving that hard into our membership. They are receptive, and wish to adapt and move to the new regime as quickly as they can. It is difficult to prepare without the information, so I am less concerned about the mechanism; I am just concerned that we need to see the rules.

[Ruth Cadbury]

Q The previous panel had a representative who owns the freehold of a lot of blocks. Andrew, you represent the property management sector. Both of you have painted a picture of the Bill causing investors to leave freehold ownership. In your submission, you said that the legislation as drafted could mean that there is nobody willing and able, particularly within residential management organisations, to take on the responsibility of residential management. I think you said that the freehold interest could revert to the Crown. What should be in the Bill to prevent that from happening?

Andrew Bulmer: I will lead with that one, Chair. I think that question was directed at me. I will come back to what needs to be in the Bill. The commentary behind this is that there is a clear and understandable push through the Law Commission and through the work being done by Government to vest the freehold or commonhold interest or the management of the development in the hands of the residents themselves, who thereby have democratic control over their development, and we find the logic of that compelling. The challenge is that it means those residents will be in charge of their own affairs. We can see in the example of Miami—the building that collapsed there—that the residents association was challenged in terms of its competence to manage the building safely. That does not mean that we abandon the adventure. I think we progress with it, but we progress with our eyes open and that means we have to support those directors.

I would like to see a support mechanism for directors who wish to actively manage their own affairs, so they can feel supported and get guidance where they need it. There would also need to be support for those directors in terms of quality assurance of their suppliers. For building safety managers, for example, it is important there is some form of a register of quality assurance. We would like to see the managing agents they will depend on being regulated as per Lord Best’s RoPA report.

In the Bill, there would need to be the option for directors to decide if they choose—purely optional—to appoint an external director to take on the role of the AP or principal accountable person. The danger is that lay directors will look at the risks involved, and they will all step back and not take up directorships. That is already happening and is already a significant problem.

Every property manager will tell you that it is difficult to get directors to come forward these days as the responsibilities become clear. When the responsibilities of the Building Safety Bill are made clear to those directors, we expect it will be difficult to get people to take up those responsibilities voluntarily, unpaid and without the necessary expertise or competence to fulfil them. The ability to appoint an external director would be likely to mean overriding the articles of association of the development and implying covenants into the leases to enable the external director to be paid for. It would require protections for leaseholders from a director who went rogue. These provisions would need to be in the Bill to enable leaseholders to outsource their responsibilities to a professional if they chose to do so.

[Daisy Cooper]

Q We received evidence this morning from witnesses from the Health and Safety Executive. They described how they had been working closely with Government officials in developing this new framework. They said they had received assurances from the Government that they will get the resources and staff they need and they seemed to think that, on the whole, most of the new roles created under this framework were reasonably clear. That seems to me to be in reasonably stark contrast to some of the evidence we are hearing now. I am interested to hear from Jayne in particular on behalf of London Councils whether you have also enjoyed a close working relationship with Government officials in developing this framework, and whether London Councils have been given any assurances that they will receive the staff and resources they need to implement this new system.

Councillor McCoy: Yes, London Councils and the Local Government Association have worked with MHCLG all through the process since the Grenfell Tower tragedy to help shape the legislation. Obviously, a lot of the time we are responding to things, but we are trying to feed in and push. I would flag up at this point that London Councils would like to see a wholesale review of the building regulation framework.

At the moment, the Bill addresses and improves the existing regulation. We have been pushing quite hard for a wholesale review across all the legislation, which is a bit more in line with the Dame Judith Hackitt report. However, we have been working closely throughout to assist and get the best out of this, and, yes, we have been working with the Health and Safety Executive. We are quite pleased with our progress so far and the way it has been coming across to the HSE.

We would like to see a requirement that the HSE works with the local authority’s building control regulator, local councils and the fire authority in the first instance—that they call on their expertise—because that helps us as London Councils to build our capacity and resources. That is important, as are the resources to go with it, and I do not think we have had any firm commitments to those resources. We keep making the case that we are going to need to bring those resources forward. I would just emphasise that making this Bill deliverable and achieving its aims of improving building safety cannot be done without the staff and skills required, and we cannot upskill without the funding to do that. To make it practically deliverable, it needs to be fully funded.

[Ruth Cadbury]

Q You may have already covered this in your submission, Andrew Bulmer. We have covered the knowledge required for the responsible person, but is there a risk of duty holders struggling to access professional indemnity insurance?

Andrew Bulmer: The wider comment on the PI insurance market is that it is in serious difficulty, and has been for some time. Any professional who is giving advice on building safety, especially fire safety matters, is having their premiums either severely increased, cover withdrawn entirely, or significant restrictions placed upon them, so accessing any professional on a fire safety matter at the moment is problematic. You used the phrase “duty holder”: if that were to refer to an RMC, for example, I cannot comment on PI insurance for RMCs. I think that is something that requires further investigation.

[Ruth Cadbury]

Q I asked a previous witness a question about the duty to co-operate in mixed use buildings with complex ownership structures. The Government have incorporated a duty to co-operate between the different accountable people and responsible people under fire safety legislation, who can be different people in a mixed-use building. Will this suffice, or do you see problems arising?

Andrew Bulmer: I see problems arising in so far as it is complex, and I can see litigation taking place as to who is the principal accountable person. That said, I am struggling to see what a better model could be. We may have to live with the complexity.

[Mike Amesbury]

Q Councillor McCoy, in relation to building control and buildings below 18 metres, are there any changes you would like to see in the Bill?

Councillor McCoy: Yes, particularly in relation to the scope of buildings within the gateway scheme. At the moment, buildings that followed a permitted development are not covered by that, so we particularly want to make sure that all buildings are covered by the gateway process, otherwise a raft of buildings are out of that scope. It also needs to align with any future legislation: the planning reform White Paper contains some serious concerns for us, because it effectively puts swathes of large areas into permitted development and takes them out of the regime. The gateways have to apply to all buildings, or all new buildings.